Wednesday, 30 July 2014.

11 am

Marriage (Same Sex Couples) Act 2013

Question

11.06 am

Asked by Lord Fowler

To ask Her Majesty’s Government whether they are satisfied with the enactment and operation of the Marriage (Same Sex Couples) Act 2013.

Baroness Northover (LD): My Lords, the first marriages of same-sex couples took place on 29 March—sooner than we had originally thought possible. We intend to bring the remaining elements of the Act into force on 10 December, enabling couples in a civil partnership to convert it into a marriage, and couples to stay married, if they wish to do so, when one or both of them changes legal gender.

Lord Fowler (Con): I congratulate the Government on their progress but perhaps I could raise one point. Canon Jeremy Pemberton married his partner in April, as a result of which he has had his permission to work as a priest in Nottinghamshire revoked and been banned from seeking a new post as a chaplain and bereavement manager. Given that there are other clergymen at similar risk, will the Minister, as a matter of good will, look at the position and see whether anything can be done to help reconcile the difficulties?

Baroness Northover: My Lords, I thank the noble Lord for his thanks to the Government on this. I was a guest at a same-sex marriage very recently and found it extremely moving. The couple had had to overcome so many hurdles to get to a point that so many of us simply take for granted. My noble friend will know that the Bill sought to protect the position of religious organisations and that this is a matter for the Church of England. We hear what he says, and it is worth also bearing in mind that things can evolve. For example, it is good that we should soon see women bishops.

Lord Collins of Highbury (Lab): My Lords, I know that the Minister is aware of the disappointment felt by many over the regulations tabled for debate yesterday. Although they made the administrative process easy, they failed to recognise that many in a civil partnership would wish to celebrate their marriage in the same way as all other same-sex couples have since March. I know that the noble Baroness understands the importance of setting the date. Will she therefore update the House on when the revised regulations will be published and tabled for debate? Perhaps on this occasion she

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could even offer to share a draft before they are tabled. Will she reassure us that they will still come into force on 10 December?

Baroness Northover: We are indeed determined that the regulations will be in place by 10 December so that civil partnerships can be converted to marriages. As the noble Lord will remember, in the consultation prior to the Act, the emphasis that came through from people feeding in their views on this was that they wanted to make sure that their civil partnership was properly marked and could be translated into an equal marriage. They wanted that to be as straightforward as possible with as few hurdles as possible. That was what was built into the Bill.

As the noble Lord will know, since then some people have felt that they want to mark that transition. He will also know that the Bill and regulations allow ceremonies to be associated, but they want to make that link closer. We are determined to try to make sure that everything that people want in this situation can be done within the complexity that he is familiar with within the Bill. Indeed, we are determined to deliver this by 10 December, and we are happy to discuss those draft regulations.

The Lord Bishop of Sheffield: My Lords, I thank the Minister for her affirmation that according to both the letter and the spirit of the legislation on same-sex marriage, it is for the Church of England and all faith communities to determine their doctrine and what is appropriate conduct for their clergy. Is the Minister aware that the recent guidelines of the House of Bishops state clearly that those who enter a same-sex marriage, together with children in their care, should be welcomed into the life of worshipping communities, and also that the Church of England is about to begin a two-year process of structured conversations to explore the changing attitudes to human sexuality and their implications for the life of the church and its disciplines?

Baroness Northover: I welcome what the right reverend Prelate has said and his tolerant approach.

Baroness Barker (LD): Could the Minister tell the House whether there have been any instances of clergymen being asked to conduct same-sex marriages against their convictions?

Baroness Northover: Again, my noble friend will know that built into the Bill was protection for religions that did not want to conduct same-sex marriages, as well as for those within religions that decided that it should be allowed—so we have no evidence of that at all.

Baroness McIntosh of Hudnall (Lab): My Lords, the Minister set out very clearly the Government’s intentions as far as the implementation of the Act is concerned. It was very reassuring to hear from the right reverend Prelate the current views of the church. However, I do not think that either she or—if I may say with respect—he addressed the question that the noble Lord, Lord Fowler, raised about the loss of

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employment that followed this incident. Can the Minister say anything further about the application, for example, of the Equality Act or any employment Act in situations where people lose their job over their sexuality?

Baroness Northover: As the noble Baroness may remember, the protections given to various religions in the equal marriage Act protect them in this regard from the operation of the Equality Act. It is up to the Church of England, but I note what the right reverend Prelate said.

Lord Elton (Con): My Lords, to clarify the position for Church of England clergy during the next two years, will my noble friend confirm that clergy in civil partnerships are able to carry out their ministry in the normal way?

Baroness Northover: I think I need to write to the noble Lord to clarify exactly what the situation is at the moment within the Church of England—but again, it is a matter for the Church of England.

Baroness Liddell of Coatdyke (Lab): On a lighter note, would the Minister join me in congratulating the organisers of the opening ceremony of the Commonwealth Games which, with great humour and more than a touch of Glasgow gallusness, celebrated how liberal every part of the United Kingdom is nowadays?

Baroness Northover: I am extremely happy to endorse that.

Viscount Ullswater (Con): My Lords, when will the Government amend the Marriage (Same Sex Couples) Act 2013 to include heterosexual civil partnerships? This would even up the playing field for those who do not wish to get married, especially those in later life who need financial security but do not want to upset their children.

Baroness Northover: My Lords, as my noble friend no doubt knows, a review came out of that Act, and the conclusion was that there is no settled view on what should happen here. Probably one of the key things—one has seen this in other countries—is that when equal marriage is in place, changes occur. So there is something to be said for looking at what people want—whether they want civil partnerships to be open to heterosexuals, so that there is equality, or whether people will stop opting for civil partnerships if equal marriage is available.

Learning Disabilities: Premature Deaths

Question

11.15 am

Asked by Baroness Hollins

To ask Her Majesty’s Government what progress has been made with regard to the recommendations of the Confidential Inquiry into the premature deaths of people with learning disabilities in the year since their response to the Confidential Inquiry.

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The Parliamentary Under-Secretary of State, Department of Health (Earl Howe) (Con): My Lords, actions are under way with a range of national delivery partners and at local level in response to the inquiry’s recommendations, including improvements in the identification of people with a learning disability, the auditing of reasonable adjustments, and the provision of health checks. Progress is monitored through the Learning Disability Programme Board.

Baroness Hollins (CB):My Lords, I welcome the commitment in the NHS business plan and the Department of Health mandate to try to reduce premature mortality in people with learning disabilities, and in particular to establish a national mortality review function, but until the necessary data linkages have been made, the review cannot begin. What action is being taken to ensure that the Health and Social Care Information Centre will prioritise the collection of the data required, such as identifying people with learning disabilities and their causes of death, so that the review can indeed begin?

Earl Howe:My Lords, the specification for the mortality review function is under development, and we all wish to see that work proceeded with rapidly. Data to support the function will be needed from both national and local sources. Work is under way with NHS England, the Health & Social Care Information Centre and Public Health England to derive data to underpin both the mortality review function and the NHS Outcomes Framework. However, it is important that this should take full account of wider developments in the collection and sharing of patient data, and this will inevitably impact on the pace of progress. As I am sure the noble Baroness recognises, it is vital that we get that right.

Lord Addington (LD): My Lords, my noble friend will undoubtedly remember that we had a discussion in this House on the problems of the deaf in trying to access healthcare, and how that leads to other problems. Will there be a pan-disability look into this problem? It is clear that those who have problems communicating in forms of consultation with the NHS get bad results from it.

Earl Howe: My Lords, many of the issues that apply to those with learning disabilities also apply to others with different disabilities, and the work currently going on in the context of the noble Baroness’s Question will, I think, have a beneficial impact across the piece.

Lord Wigley (PC): Does the Minister accept that a number of the points arising out of the confidential inquiry were touched upon by the earlier DRC report published more than six years ago, Equal Treatment: Closing the Gap, and that progress since then has been patchy? In the light of that, will he give a commitment that there will be an annual review of progress made on the confidential inquiry recommendations and a report to Parliament?

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Earl Howe: My Lords, I can assure the noble Lord that there is currently a whole-system response to the recommendations in the review. As I said earlier, this is a response from NHS England, Public Health England, local organisations and, indeed, Ministers overseeing the Learning Disability Programme Board. I shall take away the noble Lord’s question about a formal annual review, consider it carefully, and write to him.

Lord Hunt of Kings Heath (Lab): My Lords, does the noble Earl recognise that the confidential inquiry showed that there are great failings in the health treatment given to many people with learning disabilities, which probably contributes to their very poor life expectancy? He will be aware that my own former trust, Heart of England, appointed specialist liaison nurses who could help people with learning disabilities find a pathway through their healthcare. Would he advise other NHS trusts to follow that example?

Earl Howe: My Lords, the noble Lord makes a good point. Following the recommendations of the UK review of learning disabilities nursing, we have set up an independent collaborative to address that workforce’s needs. We are also working with Health Education England’s 13 local education training boards to develop greater links with the independent and voluntary sector which will help with workforce planning. This year Health Education England increased its national commissions for student learning disability nurses by 4.5%. We are working on a number of initiatives to raise the profile of learning disabilities nursing and promote the profession as an attractive career choice.

Baroness Browning (Con): The report identifies 37% of deaths that could have been prevented. People with learning disabilities and those on the autistic spectrum, some of whom are included in the report, experience communication problems at hospital level. Will my noble friend please put government force behind the issuing of hospital passports for people with learning disabilities and those with autism? The autism hospital passport was launched two weeks ago and is on the NAS website. However, these very important documents can help to prevent death only if clinicians and hospital staff read them, take note of them and act on them.

Earl Howe: I take my noble friend’s point. The specific needs of people with learning disabilities are being considered as part of the overall work programme to provide people with online access to their GP practice and GP-held e-record. That is being done in the wider context of the development of a fully comprehensive patient-held record. NHS England plans to hold a meeting later this year to look at developing a national standard for a hospital passport. This will be a patient-held document that will detail key information to be shared with any contact in the NHS.

Baroness Warwick of Undercliffe (Lab): My Lords, what is the Minister doing to ensure that comprehensive community learning disability teams are available in all areas and that GPs are proactively referring patients with a learning disability to these vital services?

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Earl Howe: My Lords, the learning disability teams are of crucial importance in ensuring that those with a learning disability are able to access the services that they need. I have a long list of things that are relevant to that subject and I am happy to write to the noble Baroness with that information.

Universal Credit

Question

11.22 am

Asked by Lord McAvoy

To ask Her Majesty’s Government what measures they are taking to increase transparency and openness in the implementation of universal credit.

The Parliamentary Under-Secretary of State, Department for Work and Pensions (Lord Freud) (Con): We consistently and regularly update Parliament and stakeholders on universal credit implementation, and the universal credit programme continues to be subject to substantial scrutiny. We will maintain every effort to communicate openly and on a timely basis.

Lord McAvoy (Lab): My Lords, I thank the Minister for his Answer, and I would like to wish him a peaceful and happy Recess. But in the mean time, many noble Lords will, like me, have been shocked to hear the head of the Home Civil Service say on 7 July that the business case for universal credit has not been approved by the Treasury. He said:

“We shouldn’t beat about the bush: it hasn’t been signed off”.

Does the Minister know of any other project on which £612 million has been spent without the business case for that project being signed off by the Treasury?

Lord Freud: I do not have a review of all the business cases, but I know that we have 44 separate business cases for change programmes in my department, the DWP, and that this is the most reviewed. What we have said—and I have said it in this House—is that the plans in the strategic outline business case for the remainder of this Parliament have been cleared, and that we are looking to get formal full clearance for the case shortly.

Lord German (LD): My Lords, the universal credit is providing great opportunity for people and is being rolled out slowly. It is also giving Jobcentre Plus advisers an opportunity, for the first time, to advise customers so that they get comprehensive support. Most of the problems seem to be about the future. Can my noble friend therefore reassure the House that it will be rolled out to and engage a large number of people by May 2015? What milestones does he anticipate we will have passed by the time that we get to May 2015?

Lord Freud: My Lords, we are rolling out universal credit on a careful basis right the way through the north-west. We are currently at 38 jobcentres across the country, the bulk of which—32—are in the north-west. On Monday we moved from singles to couples as well, and that will be introduced right the way through the north-west as we finish this rollout this year. In the autumn we will move to families; so there will be a substantial number as we do that rollout. I must

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emphasise that we are not doing this rollout in the same way as past programmes have been brought in, on a big-bang basis; we are making sure that we understand what is happening and we go at the pace at which we can do it safely.

Baroness Lister of Burtersett (Lab): My Lords, as universal credit rolls out to couples and families, the question of the impact of the payment into a single account on women who are subject to domestic violence becomes more urgent. In oral evidence to the Joint Committee on Human Rights recently, Women’s Aid expressed its fears that the new payment arrangements will endanger such women. It warned that the discretionary power to make split payments—which, of course, will require women to identify themselves as victims of domestic violence—simply will not work. Will the Minister therefore commit to work with Women’s Aid and similar organisations to find a more effective solution to try to avert this very real danger?

Lord Freud: One of the things that we are doing as we roll this out is to watch key factors very closely. That is the point of going at this pace, so that we can see small numbers to start with and see what is happening. I will watch this very closely. I talked to the Women’s Aid groups intensively on a number of things of great concern to them and to me, and I will keep watching this one very closely.

Baroness Sherlock (Lab): My Lords, although I welcome the Minister’s commitment to transparency, I was reading this week about the DWP’s battle to stop the publication of the risk register and other documentation relating to universal credit. The Information Commissioner said that the other papers should come out, and a tribunal added the risk register, but the department has appealed. One journalist has pointed out that the judge said that he could see,

“no support for the argument”,

and that the department had not, “provided any persuasive evidence”. The department now wants to appeal again. I have two questions for the Minister. First, what exactly are the Government trying to keep from us? Secondly, how much public money have they spent in the attempt?

Lord Freud: This is a government policy; it was equally a matter for the previous Government as it is for this one not to publish particular information about the business case, risk registers and so on. It is something that we are maintaining not just for this programme but generally. I will say, however, that there has been an enormous amount of information put out on this programme, more than for any of our other programmes. There have been reports from the SSAC, from the NAO, from the PAC; it was in the MPA; and it was in our annual report. We are talking to the Select Committee and going through the contents and information within those business plans without breaking the norms of what Governments do in terms of providing a specific document.

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Lord Grocott (Lab): My Lords, I listened carefully to the Minister’s response to my noble friend Lord McAvoy, and although it was quite a lengthy response, it was pretty clear to me that, in relation to the Treasury at any rate, he did not answer the question. So given that it was a splendid question and a not-so-good answer, could the Minister please put a copy of the full details of a proper response in the Library and send a copy to my good friend Lord McAvoy to read over the Recess?

Lord Freud: I am always very pleased to provide the noble Lord, Lord McAvoy, with reading material, and I shall do so in this case. However, I must make the point that we have gone through this question in some detail both in the other place and here. I have explained here that we have got the strategic outline business case plans approved, and we are expecting that the actual full strategic outline business case will be approved shortly.

Lord Brooke of Sutton Mandeville (Con): My Lords, does my noble friend accept that some of us feel that, as Ministers go, he is as transparent and open as anyone could be, and that he has the virtue of being comprehensible as well?

Lord Freud: I blush with pleasure.

Youth Employment

Question

11.30 am

Asked by Baroness Sherlock

To ask Her Majesty’s Government what action they are taking to reduce levels of youth unemployment following the recent closure of the youth employment contract incentive scheme.

The Parliamentary Under-Secretary of State, Department for Work and Pensions (Lord Freud) (Con): Tackling youth unemployment remains a priority for this Government, and our successful Youth Contract will continue. The wage incentive will end as planned next March, just three and a half weeks earlier than anticipated. The youth claimant count has fallen by 134,000—the largest annual fall since 1997—taking it to its lowest level since 2008.

Baroness Sherlock (Lab): My Lords, I have asked repeatedly about the Youth Contract wage incentive scheme in this House, and the Minister has repeatedly assured us that all is well. On 20 March, in relation to youth unemployment, he talked about,

“just about the most comprehensive response that has ever been seen”.—[

Official Report

, 20/3/14; col. 280.]

On 5 February, of the Youth Contract, he said: “Our approach is working”. On 7 April, he said:

On 17 June, we were back to “the most comprehensive response”, et cetera. Now we learn that the wage incentive scheme is being scrapped. Can the Minister

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tell the House, first, how many of the target 160,000 wage incentive payments have been made? The last note that I saw had a figure of 10,000. Secondly, when did he realise the scheme was not going to reach its target and why did he not tell the House sooner?

Lord Freud: My Lords, I am keen to reaffirm that the Youth Contract is both comprehensive and working. One element, the wage incentive, has now helped more than 65,000 youngsters into jobs. The other elements of the programme are performing powerfully: 148,000 youngsters have started work experience on the programme, and 46,000 have gone into sector-based work academies.

Lord Roberts of Llandudno (LD): My Lords, while I congratulate the Government on what has been achieved, the Minister surely understands the great devastation of youth unemployment, not only in the UK but throughout Europe. It is destroying hope and potential. Can we not now initiate a new European-wide project to somehow lower that figure across the board and restore hope to so many young people?

Lord Freud: Youth unemployment is different in its nature from general unemployment in that there is a scarring effect for the young if they do not get into the workforce early. We therefore need to make extra effort to get youngsters into the workforce, which many of our measures are designed to do. There has been a real recasting of support for youngsters, whether through training, education or apprenticeships, and we are providing this support for them through the Work Programme, the jobcentres and work experience. We have myriad programmes, and they are actually having an effect. We are now seeing very steep falls. It is not yet good enough but it is moving aggressively in the right direction.

Lord Davies of Stamford (Lab): My Lords, of course it is a priority—

Noble Lords: Bishop!

The Lord Bishop of St Albans: My Lords, a significant part of the problem is that there are some posts suitable for young people, but they are often in parts of the country where accommodation is prohibitively expensive or the cost of commuting simply precludes them from taking those jobs. In the light of that, have Her Majesty’s Government considered embracing the concept of the living wage for all people of working age?

Lord Freud: Obviously we have looked at the living wage. If the figure suggested for the living wage were to be adopted, we would have to consider the impact on unemployment and the particular impact on youngsters, who would be hit worst. The NIESR estimated that adopting the living wage as opposed to the minimum wage would knock 300,000 youngsters out of work.

Lord Davies of Stamford: My Lords, it is obviously very important to do everything that we possibly can to help young people into work for the first time or back into work from unemployment.

Noble Lords: This side!

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Lord Davies of Stamford: The coalition has already had time; I am sorry.

But what the Minister describes as a scarring effect can affect people at any age if they spend too long outside the workforce and cannot get back into a job. I have asked the Minister questions about this before and he has avoided them. Can he now tell us whether the Government keep evidence of age discrimination being practised against jobseekers? Can he also tell us what the Government do if they come across a prima facie case of age discrimination? Have they ever prosecuted or might they prosecute if a clear case arose?

Lord Freud: I have written to the noble Lord on this matter. We have not prosecuted in such a case but if we found something egregious we would consider doing so.

Baroness O’Cathain (Con): My Lords, does my noble friend agree with me that it is about time those on the opposite side celebrated with us that there has been such an increase in youth employment in the last few months? Secondly, the way in which we are doing it is right. As my noble friend Lord Roberts said, the last thing we want is one EU policy. I want to know from my noble friend the Minister whether we are getting down into the local areas to get the local employment partnerships involved in training and giving apprenticeships to unemployed youths, which is what we need to do.

Lord Freud: My Lords, it is exactly right that we need to get to the real problems of youth unemployment and the structural level of unemployment—youngsters who are workless. That figure grew through the longest boom in our history and only now are we beginning to see it come down. We are going for the youngsters who have not been looked after properly in recent decades. The figure I always cite in this House is the full number of workless—both unemployed and inactive. In 1997 that figure was 17.7%. It remained flat through the boom and at the peak it was 17.4%—not much difference. At the end of the recession it stood at 19.1% and now it is right down below any of those figures at 16.8%. That shows that our policies are beginning to work on the people who are structurally disadvantaged in this country.

Standing Orders (Public Business)

Motion on Standing Orders

11.37 am

Moved by Baroness Stowell of Beeston

That the standing orders relating to public business be amended as follows:

Standing Order 10 (Hereditary peers by-elections)

In paragraph (1), after “death” insert “, or resignation or expulsion from the House under the House of Lords Reform Act 2014,”.

In paragraphs (2) and (3): after "death" insert "or resignation or expulsion".

Motion agreed.

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Standing Orders (Public Business)

Motion on Standing Orders

11.38 am

Moved by Baroness Stowell of Beeston

That Standing Order 10(6) (Hereditary peers: by-elections), which requires that by-elections take place within three months of a vacancy occurring, be dispensed with to allow the by-election following the death of Lord Methuen to take place on 21 October 2014.

Lord Hunt of Kings Heath (Lab): My Lords, may I ask the Leader of the House for some clarification? As we apparently have the ability to delay the by-election of an hereditary Peer for some weeks, does that mean we could delay it for some years, or indeed indefinitely? If so, ought we not to do so?

The Lord Privy Seal (Baroness Stowell of Beeston) (Con): I think the noble Lord is clear about what we are doing. We are making a change to provide for a logistical matter so that the by-election can be held when the House returns in the autumn.

Motion agreed.

House Committee

Motion to Agree

11.39 am

Moved by The Chairman of Committees

That the 1st Report from the Select Committee (Banqueting rules) (HL Paper 8) be agreed to.

The Chairman of Committees (Lord Sewel): My Lords, the Refreshment Committee reviewed the current banqueting rules in May this year. It made recommendations to the House Committee, which are set out in the report before the House today. The purpose of the revisions is to ensure that the rules concerning banqueting are clear and to better protect Members financially when they sponsor events for third parties. If agreed today, the new rules will take effect from 1 January 2015.

Motion agreed.

Affordable Childcare Committee

Membership Motion

11.40 am

Moved by The Chairman of Committees

That Lord Brabazon of Tara be appointed a member of the Select Committee in place of Baroness Neville-Rolfe, resigned.

Motion agreed.

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Wales Bill

Order of Consideration Motion

11.40 am

Moved by Baroness Randerson

That it be an instruction to the Committee of the Whole House to which the Wales Bill has been committed that they consider the Bill in the following order:

Deregulation Bill

Motion to Agree

11.40 am

(a) Clauses 1 to 12 of, and Schedules 1 to 3 to, the Deregulation Bill be committed to a Committee of the Whole House;

(b) the remainder of the Bill be committed to a Grand Committee.

Lord Skelmersdale (Con): My Lords, we are faced with a slightly unusual situation in that Clauses 1 to 12 and Schedules 1 to 3 are to be debated in Committee of the Whole House and the rest of the Bill, Clauses 13 to 91 and associated schedules, are to be taken in the Moses Room. In theory, the beginning of the second group could be taken at the same time as the House is in Committee on the first part of the Bill. May I have an assurance that this will not happen?

Lord Wallace of Saltaire (LD): My Lords, I would love to be able to be in two places at the same time, but unfortunately that is not possible. I can inform the House that the first day, the Committee of the Whole House, has been agreed to take place on 21 October and the first day in Grand Committee has been agreed to take place on 28 October the following week.

Motion agreed.

Deregulation Bill

Order of Consideration Motion

11.41 am

Moved by Lord Wallace of Saltaire

That it be an instruction to the Committee of the Whole House to which provisions of the Deregulation Bill have been committed that they consider those provisions in the following order:

73G: Clause 65, page 66, line 10, at end insert “or the court has ordered that such prescribed information need not be provided in whole or in part”

Lord Beecham (Lab): My Lords, one of the most objectionable provisions in Part 4 of the Bill, which deals with judicial review, is embodied in Clauses 65 and 66, dealing with the provision of information about financial resources. Amendments 73G, 73H, 73M, 73Q, 73T, 73U and 73X in my name deal with this issue, alongside those in the previous group, which dealt with the procedural aspects covered in the Delegated Powers and Regulatory Reform Committee report and which we debated in somewhat curious fashion on Monday. Then, it will be recalled, we broke shortly before the dinner break business and the Minister had the unusual job of making a very short reply after the dinner break.

At Second Reading, the Minister described Part 4 as,

“a much needed rebalancing of the financial risk of bringing or driving a weak judicial review. We think it right that those who bring or choose to become involved in a judicial review should face their fair share of the financial risk that entails”.

The noble Lord went on in a minatory—or should I say “maxi-Tory”?—vein to say:

“Those who intervene in a case … can … add value … but we think it right that they should face the financial consequences of their decision to intervene”.—[Official Report, 30/6/14; col. 1542.]

This, as we will no doubt hear again today and heard at Second Reading, completely misrepresents the character of intervention, which, after all, requires permission from the court. It is very often provided in significant cases of public interest by reputable charitable organisations and equally often is found to be helpful to the parties and to the court. I cannot blame the Minister—the voice is the voice of the noble Lord, but the hands around the throat of judicial review are the hands of the Lord Chancellor.

Clause 65 requires an applicant for leave to apply for judicial review to disclose any information about the source, nature and extent of financial resources available, or likely to be available, to meet the costs of the proceedings. The nature of the information would, as we heard on Monday, be specified by rules of court effectively determined by the Lord Chancellor because, as was made clear on that occasion, the rules of court committee effectively has to implement what the Lord Chancellor desires to be done.

Amendment 73G is intended, on the assumption that Clause 65 stands part of the Bill, to provide for judicial discretion about the funding issue. I must concede that it is poorly drafted and the word “or” in the amendment should be replaced by “unless”.

Amendments 73H and 73M would remove the court’s duty to consider what information is, in the Government’s extraordinary formulation, “likely to be available”. “Who from?”, one wonders. Crowdfunding, charities,

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or repentant spouses of Russian businessmen deprived of tennis games with the Prime Minister? And what is meant by the test of likelihood? Come to that, what is meant by the test of availability?

Amendments 73Q and 73U would restore the court’s discretion in the matter of an order for a non-party to pay costs, while Amendment 73X would confine any surviving provision for the court to order costs to those who actually provide financial support rather than those likely or able to provide it, who may never have provided such financial support. It is of course interesting that no equivalent provision in relation to costs appears to apply to those who might benefit from—or even, I suppose, help to fund, directly or indirectly, the respondent to—an application, unless Clause 66(3) is intended to apply in such a case. Perhaps the noble Lord could confirm whether that is the position.

In general, however, the effect of Clause 65 is to threaten not only the applicant but those who might support an application with a liability for costs on the basis of guilt by association in the eyes of the Government—who might, of course, be the defendant. That is an improper approach. The whole object of the clause is clearly designed to provide what we have heard referred to in debates on the Bill thus far as a “chilling effect” on the judicial review process, and in particular on those who might wish to raise significant matters affecting the rule of law where, I repeat, the court has to grant permission in any event. It is a wholly improper concept and I hope that even at this stage the noble Lord will indicate that the Government are prepared to think again about it. If they are not, and we get to Report with the Bill unamended, serious consideration will have to be given as to what will happen thereafter, because the portents do not look good for the preservation of judicial review in this important respect. I beg to move.

Lord Pannick (CB): My Lords, I have indicated my opposition to Clauses 65 and 66 standing part of the Bill and I agree with everything that has been said by the noble Lord, Lord Beecham. I do not understand why the Government are seeking to single out judicial review for such provisions, unlike any other form of civil litigation, unless the objective is to discourage judicial review claims. Where is the evidence of any mischief that these clauses are designed to remedy? Courts already have ample powers, which they exercise in appropriate cases, to require third parties to pay costs.

I am particularly concerned about the effect that these clauses will inevitably have because the reduction in legal aid already makes it extremely difficult for claimants to secure funding for judicial review on matters of public importance. If claimants are able to demonstrate that they have a properly arguable case on its merits, and if they satisfy other requirements such as standing and time limits, they should not be obstructed further by complex requirements—as these are—to disclose financial information.

In any event, Clause 65 is far too broadly drafted, referring as it does to financial resources “likely to be available” to the applicant. What does that mean?

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Does it cover the family and friends of the applicant, the law firm or law centre that is providing services pro bono and the charity that is supporting the claim? For all these reasons, I am concerned that Clauses 65 and 66 will impose a wholly unnecessary hurdle that will impede the delivery of justice in this important area of the law.

Lord Woolf (CB): My Lords, first, I apologise to the House that I was a little late in arriving; I was giving evidence before the House’s Constitution Committee. I endorse what I heard of the speech made by the noble Lord, Lord Beecham, and I support my noble friend Lord Pannick in what he has said. The situation with regard to judicial review is that it is much more difficult for one to be funded in the way that ordinary civil actions are funded. In the case of ordinary civil actions, it is well established that the conditional fee arrangement, although it has been modified by recent amendments, is working reasonably well. Certainly as far as claimants are concerned, they are in a position to take on responsibilities which they could not otherwise take on.

However, in judicial review, it is very rare indeed that any damages or any form of financial benefit to the claimant are involved, so a claimant in that situation will have much greater difficulty in financing an application for judicial review than he would if he was bringing a claim for an injury in a motor accident, for example. This is just one more difficulty which is placed on the claimant, which makes it particularly important that the possible, very serious, unintended consequences of these provisions are looked at very carefully. It is very important that there should be access to justice, as that goes to the very heart of the rule of law. Access to justice should be easier in the case of judicial review than it is otherwise.

In India, for example, which is not somewhere you would normally look to for expeditious legal proceedings, the Supreme Court can respond to a postcard that is written to it. We have a much more complex process than that, but they thought it very important that the traditional jurisdiction of the Supreme Court of India, which is based on the very same provisions in our system as judicial review, should be available for the widest audience. Therefore they allow that to happen.

As far as I am concerned, one of the most important decisions I gave as a judge of first instance was on an application by the Child Poverty Action Group. I stressed in my judgment—which anybody can refer to—how important it was to extend the rights of audience and to take a generous view of standing. Otherwise, matters that affected the whole of society would not be examined by the courts. Each person entitled to supplementary benefit at that time was going to get only a very small sum of money, but it was a sum of money that was extremely important to them and made the difference to the whole of their existence. However, they could not finance the case themselves. If you take away legal aid in that sort of situation, and then add to the problem as this legislation does, that is something to worry about.

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Lord Marks of Henley-on-Thames (LD): My Lords, I said a great deal of what I intended to say on Clause 65 when I spoke to the amendment moved by the noble Lord, Lord Beecham, to the clause on Monday. My position, as I explained, is that I regard the requirement for any supporter of an application for judicial review to disclose the extent of his actual or likely financial resources as being contrary to justice and likely to deter or even stifle legitimate applications for judicial review.

I accept that there is a case for ensuring that applicants with means do not hide behind applicants with no means or shell corporations to bring a judicial review application without facing, or being prepared to face, the costs consequences of its failure. However, the provisions proposed by Clauses 65 and 66 are far wider than is necessary simply to limit that practice where it exists. As the noble Lord, Lord Pannick, pointed out, the courts already have ample powers to order costs against non-parties under Section 51 of the Senior Courts Act and under Rule 46.2 of the Civil Procedure Rules. Third parties who support litigation can be ordered to pay the costs of that litigation if they are effectively the real applicants and the applicants on the proceedings are mere nominees. That is just and as it should be. However, I suggest that Clause 66 as it stands—which goes far wider—is unnecessary and, in its mandatory effect, unduly dirigiste.

Noon

Our amendments to Clause 66 in this group, which are Amendments 73N, 73P, 73Q, 73R and 73U, are designed to ensure that the power to order costs against non-parties is considered and exercised only at the appropriate stage. We say that the appropriate stage is the one at which questions of costs are to be considered and determined, at the end of the case. Then it is right that, where an applicant on the paper appears to be a nominee, the court may require to be provided with information as to who really is or has been funding the case, in order to ensure at that stage that an appropriate costs order is made. Of course, that may include information about who is funding a corporation which is of itself unable to meet a costs order.

The court might well then regard it as right, in the exercise of its discretion, to make a costs order against the real funder of an application. However, the sensible way to deal with this is for the courts to be given a discretionary power to require information at that costs stage, and a discretionary power to make an order if, and only if, the court considers it in the interests of justice so to require or so to order. It is not right, we suggest, to impose a compulsory system on the court, which would require the court to consider making a costs order against a non-party who has provided financial support to the application.

I come back to the examples that I gave the other day of a group of parents who fund an application to challenge a school closure order or a group of residents who fund an application to challenge a decision of an authority concerning the village where they live. Some of them will be more wealthy than others, but it is utterly wrong to chill or to deter the wealthier citizens

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or wealthier parents from helping to fund an application. The provisions of these two clauses would have a serious chilling effect on applications for judicial review. I regret that I cannot regard them as consistent with the Government’s stated intention not to jeopardise judicial review; they would plainly have that effect.

I see no reason why Parliament should not legislate to clarify the court’s discretion, but that is a world away from introducing a presumption in favour of imposing on any party who provides support for a judicial review application an obligation to provide information about resources or likely resources right at the outset, even before an application is brought, and introducing what amounts to a presumption that he will be liable for the costs of an application if it fails, because that party would therefore not bring the application.

Baroness Lister of Burtersett (Lab): My Lords, I want to ask a question which was touched on by my noble friend Lord Beecham, by the noble Baroness, Lady Campbell of Surbiton, in our previous grouping, and also today by the noble Lord, Lord Pannick. At Second Reading, the Minister categorically assured your Lordships’ House that ensuring the courts have the information they need when awarding costs,

“does not mean that everyone who donates to a campaign will be at risk”. — [

Official Report

, 30 June 2014; col. 1542.]

Yet in both written and oral briefings that I have received, this very risk has been one of the concerns that have been raised. For example, Liberty and the Bar Council both warn of the chilling or deterrent effect of these clauses, which appear to mean that people who are not directly party to the proceedings but who have supported an applicant could be held liable for costs. Michael Spencer, solicitor for the Child Poverty Action Group—I remind the Committee of my interest as honorary president of that organisation, already referred to by the noble and learned Lord, Lord Woolf—spoke to the Human Rights Lawyers Association and warned:

“If individuals or groups fundraise or seek donations to help bring their case, the financial clauses of the Bill will put their donors and funders at risk too”.

Will the Minister spell out in words that a non-lawyer can understand who will and will not be at risk of liability? If it is not everyone, is it someone or is it no one? There are two very different ways in which the assurance could be interpreted. If it is no one, could the Minister point—perhaps this is not so helpful for the non-lawyers—to where in the Bill that is made clear? Some people are reading the Bill as saying that it will affect someone, even if not absolutely everyone.

Perhaps the Minister could also answer some very specific questions put by the coalition of civil society organisations that have been briefing noble Lords about the clarity needed on third-party costs liability. They ask whether, if a family chips in to fund a relative’s challenge to a treatment in a care home, they will be liable for costs, perhaps putting their homes at risk. Lawyers may act pro bono to support people who cannot pay. Will their gift in kind mean that they are treated as someone funding or likely to fund the case?

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If a community group uses crowdsourcing to fund litigation, as was the case with the Lewisham hospital challenge, will every donation carry a cost risk?

I hope that today, once and for all, it can be clarified who exactly is at risk as a result of these clauses. If the fears being voiced by so many organisations are realised, I suspect that noble Lords may want to come back to this matter on Report.

Lord Cormack (Con): My Lords, the noble Baroness asks some pertinent and important questions. I had not intended to contribute to this debate, but was moved to do so by the extremely perceptive observations of the noble and learned Lord, Lord Woolf, and the noble Lord, Lord Marks, both of whom made some valid points.

We will be constantly reminded in 2015 of those central words of Magna Carta:

“To no one will we sell, to no one deny … justice”.

When the noble and learned Lord, Lord Woolf, talked about access to justice and how important it is that everyone should have it, it reinforced my belief that, although it is entirely proper to ask the sort of questions which my noble friend Lord Marks addressed, I would rather—I have said something similar in this Chamber before—we erred on the side of leniency. One is constantly reminded of that old adage that it is better that 10 guilty people get off than that an innocent person does not. In the context of the judicial review, it is far more important that the sort of people for whom the noble Baroness, Lady Campbell of Surbiton, pleaded the other day should not be discriminated against than that somebody who may be a little better heeled should be so. I hope that we can bring a balance to this matter and remind ourselves of that basic tenet of the rule of law:

“To no one will we sell, to no one deny … justice”.

Lord Davies of Stamford (Lab): My Lords, I agreed with the very eloquent plea on behalf of the system of judicial review in a country based on the rule of law which we have just heard from the noble and learned Lord, Lord Woolf. I agree also with the remarks of and amendments put forward by the noble Lords, Lord Beecham, Lord Pannick and Lord Marks.

My noble friend Lady Lister has asked a lot of the pertinent questions. The noble Lord, Lord Cormack, just mentioned Magna Carta. I draw his attention to another part of that document. Ever since Magna Carta, it has been a principle that the state, the King or the Government cannot seize the property of the citizen except by some very clearly defined legal process and in very sharply legally defined circumstances.

Although I think that the rules about making third parties financially liable for court cases are not as clear in the law as a whole, particularly since the Hamilton v Al Fayed case, as they should be—and it would very good if we could have those codified more precisely—what would happen to the law in the matter of judicial reviews if we passed this Bill as it is would be quite horrifying. Clause 66 (3) states that a,

“court or tribunal must consider whether to order costs to be paid by a person other than a party to the proceedings, who is identified in that information as someone who is providing financial support for the purposes of the proceedings or likely or able to do so”.

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I repeat,

“or likely or able to do so”.

That is in no sense precisely defined—it could be anybody. It could be any of the people listed by my noble friend Lady Lister. It could be—could it not?—someone who is a member of a corporate body, even though he or she had played no particular part in preparing for, or promoting, that application for judicial review. It could be—that would be a fear—someone who was a known supporter of a particular NGO which itself was an applicant; but, again, without he or she having played any part in supporting that application, or perhaps without even knowing that the application was being put forward. That is a perfectly possible scenario. We need to make absolutely sure that none of these obvious perversions of justice could occur.

I totally agree with the implication of the rhetorical question posed in the House this morning by the noble Lord, Lord Pannick, which is: why are the Government doing this? Clearly the Government are doing this in order to close down the judicial review system to the greatest degree possible, with the intention of protecting the Executive branch—it is a very dangerous tendency. What they are doing here, however, is drafting a law which simply does not meet the elementary requirement to be precise, clear and unambiguous. I think this phrase,

“or likely or able to do so”,

is really quite terrifying, and I hope we get some clear definitions from the Minister. Just a statement from the Front Bench will not do: we need to remove these very offensive—very dangerous—words, and replace them with something much more precise.

Since this group of amendments encompasses two clauses and two clause stand part debates, on Clauses 65 and 66, it is probably the right moment for me to raise Clause 67. It is probably also right for me to raise another matter that is coming up: Clause 68. Perhaps Clause 68 is coming up in another group of amendments. Is that the case?

A noble Lord: Later.

Lord Davies of Stamford: In that case I look forward to addressing the Committee on that matter later.

Lord Brown of Eaton-under-Heywood (CB): My Lords, I add my name to those who have raised the objections to these clauses. The noble Lord, Lord Davies, says that one should have greater precision if one is going to legislate in this way. The fact is that you cannot have greater precision. This feature of the Bill, like so many other features of Part 4, should be left to the courts to work out. As has already been said, there is an existing and entirely satisfactory body of law which governs the ability to pursue cost orders from unseen funders and backers of litigation—those who mischievously or for their own advantage support litigation—but not from those who, appropriately and philanthropically, rightly back public interest causes.

Indeed, in the justice briefing on these aspects of the Bill there is a footnote—a reference to a case that the noble Lord, Lord Davies, mentioned a few moments ago: Hamilton v Al Fayed (No. 2), which was decided

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in 2003. Noble Lords will find this an illuminating judgment—it is one that I myself wrote—that provides an ample basis for developing this area of the law. This should be left to the courts. We should not seek to deal with it in this way, which is necessarily going to lack precision because legislation cannot address all the varying circumstances that could arise.

Lord Davies of Stamford: In the circumstances, I am following what the noble and learned Lord is saying particularly closely. He seems to think that it is adequate that the courts should set rules on these matters. Does he not agree that it is very important that a citizen should always know in advance whether he or she is incurring liability, just like a solicitor needs to know in advance whether he or she is breaking the law? There should be no ambiguity in these matters. It should be quite clear what constitutes support, potential support or the creation of potential liability. It is very unreasonable that the citizen should be left in any doubt on that subject.

12.15 pm

Lord Brown of Eaton-under-Heywood: I am grateful for that intervention, which in fact underlines the point. The fact is that it is impossible. No one could draft a set of principles or rules that would accurately dictate in advance how the judicial discretion in this matter would be exercised in all possible circumstances. All that one can do is to give indications. That is what we sought to do in Hamilton and it is what the courts will do on a case-by-case basis when this question arises. You cannot categorically set out all the various circumstances. Costs are always a difficult matter. They are left to judicial discretion, and that is how it has worked down the generations. No one has ever previously tried to prescribe that the courts must in certain circumstances—or must not, in other highly specific circumstances—order costs. The real problem with this provision is that it will be used to limit access to judicial review to those who have substantial independent means. It will be used effectively to deter others from pursuing litigation because they will feel that they are at risk of endangering their supporting family or other properly supporting bodies.

Lord Mackay of Clashfern (Con): My Lords, I am delighted to hear from the noble and learned Lord, Lord Woolf, with all his experience, that the system of financing litigation by the no-win no-fee system, as it has been called, is working reasonably well. Many noble Lords will remember that the introduction of that system was not without a certain amount of difficulty for those who were promoting it.

I think that it is not correct to say that legal aid has been removed from judicial review. My understanding is that legal aid is available up to the point at which the judicial review is permitted to go ahead or not. Subject to this, the payments to the lawyer in question will depend on whether or not the judicial review is allowed to go ahead from the point at which the respondent to the judicial review has replied to the description of the review that is put forward under the protocol. Nothing

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else, as far as I understand, is affecting legal aid. That seems to me completely reasonable in the circumstances of judicial review.

The last time I spoke on this part of the Bill, I hope that I made it clear that I cherish judicial review as a very important aspect of our judicial process. However, I have pointed out, and I believe that it is beyond doubt, that the scope for judicial review is a deal greater than it was many years ago when the finality clauses were in force in many provisions of statute. One has to be careful in approaching any restrictions on judicial review, though, as the noble and learned Lord who is the President of the Supreme Court has said. I am certain that the clauses that we are dealing with today, particularly the first of them, are very much in that category, and that considerable care is required.

One of the difficulties about judicial review that has been brought to my attention quite frequently over the past years is the sort of circumstance that the noble Lord, Lord Marks, referred to. I will not preface it in the way that was done earlier—I am sure that he will understand why not. In a village, nearly all the villagers are interested in having a certain decision of the local authority overturned. The villagers go to their lawyer, who says, “Well now, let’s see. Is there anybody in the village who is rather poorly off?”. Perhaps, fortunately for the system, there is no such person, in which case they have to continue on the ordinary basis, without legal aid. However, if somebody in the village qualifies for legal aid, under the scheme that can operate we will find that the whole village is able to go ahead on the basis of legal aid in such a way that if the application is unsuccessful, the litigant who is legally aided is of course protected against a court order.

The last time I spoke I illustrated how that had happened in quite a considerable campaign against the previous Government’s educational policy on academies. In the literature that was produced at the time, one thing that was said was, “So far, all the people who are applicants are entitled to legal aid, so the whole litigation will be at the expense of the taxpayer”. That is a difficult situation. The point is not that the person of little means is being in any way impeded, but that they have become an instrument for attacking the taxpayer generally. I am not sure as yet what the right way to deal with that problem is, but it certainly needs to be dealt with. I suppose that the courts could deal with it, but the difficulty is that there are a lot of individual applications, each of which is usually dealt with separately. In the case of the Government’s policy on academies, most of the attacks were based on local considerations—although, as was said, the whole scheme was being attacked.

I certainly regard it as of the utmost importance that any rules of this kind that are put forward are very carefully scrutinised. It may well be that as phrased in this clause they are somewhat on the wide side. However, it does seem that there is a problem that your Lordships will need to address in some way to preserve justice for the taxpayer, as well as for the litigant. I am not at all in favour of putting any more difficulties in the way of a proper litigant applying for judicial review than exist at the present time. I am

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concerned at the development of matters around judicial review over the years—and over recent years in particular. To have a shell company that is set up particularly for the purpose of promoting a judicial review strikes me as somewhat strange, and whether the rules are sufficient to cope with that is a matter that I would like to hear about.

The other aspect, referred to by the noble and learned Lord, Lord Woolf, is standing. I mentioned the other day that I was nominated as senior counsel for the Crown in the original decision on standing in this House, but the courts have expanded the concept of standing quite fully since then. I am not certain whether it embraces the standing of a shell company set up by people to protect themselves against the possibility of court costs. No doubt those who are more familiar with recent practice will be able to help me on that point. For the time being, it seems to me that there is a problem to be dealt with, and I am anxious to learn whether the proposals in the Bill or the amendments are a better way of dealing with it.

The Minister of State, Ministry of Justice (Lord Faulks) (Con): My Lords, this has been a very helpful and well informed debate on the clauses dealing with the provision of information about financial resources and—it is important to distinguish between the two—the use of information about those financial resources.

As noble Lords will be aware, anyone wishing to bring a judicial review must first obtain the permission of the court to proceed. This is set out in Section 31 of the Senior Courts Act 1981 and mirrored in Section 16 of the Tribunals, Courts and Enforcement Act 2007. Clauses 65 and 66 relate to the information that an applicant must provide as part of that application and direct the court to consider that information when making costs orders. In order to ensure that the court is properly informed under Clause 65, the court or Upper Tribunal cannot grant permission to proceed with judicial review unless information on funding is provided. Clause 66 requires that the courts have regard to this information when exercising their existing powers and discretion to award costs.

Amendments 73G, 73H and 73M, taken together, seek to weaken the requirement that an applicant applying to the court or tribunal for permission to bring a judicial review provides information on financial resources. The effect of Amendment 73G would be to enable the courts to disapply that requirement in whole or in part. Nothing is provided about the circumstances under which the court may disapply the requirement. Amendments 73H and 73M seek to remove the requirement for an applicant to supply information about financial resources that are “likely to be available” to fund the claim. There is presently no general requirement for applicants to reveal the source of funding they are receiving for a claim. This may hinder the courts in assessing fairly the available financial resources when making costs orders. Requiring the applicant to provide this information, regardless of whether the funding is provided by a formal party to the claim, will assist the courts in better exercising their existing powers and discretion to apportion costs fairly. Also—and this is worth stressing—in responding

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to our recent consultation on judicial review, the senior judiciary welcomed the greater transparency that this would involve, although not the former judges who have participated in this debate.

We are concerned that potential applicants are able to set up shell companies, with the sole purpose of fronting a judicial review, enabling the individuals or bodies driving the claim to avoid full costs implications, ultimately at taxpayers’ expense. Take the challenge to my right honourable friend the Secretary of State for Justice’s decision to grant a licence to exhume human remains which turned out to be those of Richard III; a case referred to in Monday’s debate by the noble Lord, Lord Beecham. A company was formed to bring that judicial review, protecting the sole director from costs liability and an absolute protective costs order was granted, in part on the basis that the company itself did not have any assets. Noble Lords may be aware that the court in this case recently found that the decision of the Secretary of State for Justice was entirely lawful. However, the taxpayer has been left to foot the Secretary of State’s costs, of £82,000 up to March this year, in properly defending his lawful actions. The wider cost to the public purse has been put at £175,000 and may be higher.

12.30 pm

Lord Woolf: Is the Minister saying that the powers the court has now would not have enabled it to obtain information about who was behind the shell company to which he referred and if need be to make an exceptional order for costs against the persons supporting it?

Lord Faulks: These clauses will require the court to go through the processes described in them. It is true that a particularly inquisitive court might have been able to find out more than—

Lord Woolf: Could an application not have been made by the Crown saying it was seeking orders for costs and asking the court to make the appropriate orders?

Lord Faulks: The problem was that there was nobody to enforce an order for costs against, effectively. That was the disadvantage that accrued to the taxpayer. Clause 65, which was welcomed by the senior judiciary, provides for information about financial resources to be provided and for that information to be used. The problem was that that case proceeded and there was no way of recovering the costs when it concluded.

Lord Marks of Henley-on-Thames: I am sorry to take up the Committee’s time, but I am not sure that the Minister has answered the point made by the noble and learned Lord, Lord Woolf. First, there is clearly a power to order the backers of a shell company to pay the costs if a shell company is put forward as the applicant. The question to which the noble and learned Lord, Lord Woolf, wanted an answer was whether the Minister agreed that in the exercise of that power, or in considering the exercise of that power, the court would not have ample power to require information about

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the nature and extent of the backing and then to consider orders accordingly. I suggest that it is quite clear that the court has that power.

Lord Faulks: The court certainly has power to make orders against non-parties in appropriate circumstances under the existing law. It is not normally the case that that is happening. The purpose of these clauses is to provide a statutory framework in which the court can find the information and use it if it thinks appropriate while retaining the discretion.

Lord Woolf: I really must press the Minister. I know he will forgive me rising again. If we do not want to increase the costs of the ordinary application for judicial review, is it not very important that where you have a special case, such as the one to which the noble and learned Lord, Lord Mackay, referred in his recent speech and the case we are looking at now with the particular circumstances relating to Richard’s burial, applications arise to deal with the particular case rather than putting matters on the general body of applicants for judicial review who receive assistance?

Lord Faulks: In many cases, this will be a fairly straightforward procedure, whereas in the Richard III case it would have been a rather unusual, more searching procedure. I am afraid that I cannot depart from the Government’s position that these clauses will put in statute an important process which has not always been adequately undertaken by judges, and which was welcomed by the senior judiciary, in order, in some circumstances—

Lord Davies of Stamford: Can we just establish the facts in relation to the Richard III case? We know that it would have been possible for the court in such a case, if it wished to do so, to investigate the funding of the straw company or the straw man who was the applicant and, if necessary, to have made an order for costs against the backers of that action. We also know that, in that case, that action was not taken. Did the Government make an application for a costs award in their favour on that occasion? In other words, did they attempt to initiate that process in the Richard III case?

Lord Faulks: I am not aware that they did. Rather than take up more time discussing the particular facts of that case, I will write to all noble Lords who have taken part in this debate and explain what course the Government took in relation to it. I think I have probably taken up enough time on the subject.

What we are concerned with is not, in fact, a radical departure from what exists, but sets down clearly the scope of the discretion and makes it a matter of course that in such cases there will be information about the financial resources, and that they will be used. As I have conceded, these clauses do not introduce any new principles concerning the costs liability of non-parties. Their purpose is to increase transparency, so as to allow the courts to exercise their existing powers and discretion more effectively. In other words, more information will be available on which to make any decision that they have to make.

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The Government do not agree that the requirement to provide information should be limited or applied only in certain circumstances, as Amendment 73G would provide. We do not accept that the transparency requirements should apply to some people and not to others. Furthermore, we do not agree that prospective funding should be excluded from the information that an applicant is expected to disclose, as Amendments 73H and 73M seek to achieve. It is vital that the courts have before them the full financial picture of a claim. This must include details of any financial resources that are likely to be available towards the costs of the litigation. Noble Lords will surely accept that, were these amendments made, third-party funders who sought to protect themselves from liability would merely structure that funding in such a way that it would not be available on application but only thereafter.

We will be working with the Civil Procedure Rule Committee and the Tribunal Procedure Committee so that the rules can make clear the exact parameters of the information that applicants will be required to provide, together with a duty for applicants to update the information where circumstances change materially. The noble Lord, Lord Beecham, suggested that the rules of court would simply reflect what the Lord Chancellor wants. The position is that the Lord Chancellor can direct that they achieve a certain purpose, but the terms are for the rule committee. As I endeavoured to explain last time we debated these matters, the rule committee is made up of some extremely distinguished lawyers, and they will be responsible for the particular terms of the rules. I do not accept that the transparency requirement that Clause 65 permits is an onerous one.

I turn now to Clause 66. Amendments 73N, 73P and 73R are concerned with what the judge does with the information, and seek to change the circumstances in which the court should have regard to information about the funding of the application when making costs orders. Rather than requiring the court to consider the funding information provided under Clause 65, the amendments would allow the court to have discretion to consider financial information, which it would be able to order the applicant to provide if it considered it just to do so. The information would be limited to sources of funding actually available to the applicant, and would not cover sources that were likely to be available. Rather than looking at the applicant’s ability to fund the judicial review generally, the information would be limited to how the applicant would meet the other side’s costs.

Amendments 73Q and 73U seek to replace the duty, conveyed by the word “must”, with a discretion, conveyed by the word “may”, for the court or Upper Tribunal to have regard to information provided under Clause 65 when considering costs awards. These clauses do not mean that applicants have to provide an in-depth breakdown of every aspect of their financial position, but it is right that they should provide information on how they will fund the judicial review generally, and not just the other side’s costs. If necessary, applicants will be able to update the court at a later stage if the position changes. I would expect those who choose to

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bring a judicial review to consider first how they will meet the costs of doing so. This is what the clause seeks to bring about.

It is right that the courts should consider this information. Let me be clear that this does not mean that a court will be obliged to make a costs award against a non-party. As the noble and learned Lord, Lord Brown, made clear, there is a substantial body of jurisprudence as to how the discretion is exercised vis-à-vis a non-party. Rather, the courts are obliged to consider the information properly when deciding whether or not to make such an order.

Amendment 73T would allow the courts or Upper Tribunal to sit in private or impose reporting restrictions to protect the privacy of a person’s financial information which is required to be provided under Clause 65. I fully understand that it may seem that such a provision is necessary, but I hope to be able to provide reassurance that the amendments are not necessary as courts have existing powers in this area. There has long been a general rule that a hearing is to be in public. However, the power has existed for a long time to conduct proceedings in private where necessary in the interests of justice. Rule 39.2 of the Civil Procedure Rules already reflects that power so that if a hearing involves confidential information, including financial information, and if publicity would damage that confidentiality, this information can be kept private. As is the case now, this clause does not change the position that financial information made available to the courts need not be made publicly available.

Amendments 73W and 73X amend the duty on the court so that it need consider costs orders against only those who have actually provided support or, as provided by Amendment 73V, those who have promised to provide support. This would mean that the court would not have to consider making a costs order against those who are likely to contribute to the funding of the judicial review, including not making costs orders against those sheltering behind shell companies created simply to avoid proportionate liability for costs.

Amendment 73V would also mean that those who are likely to fund and drive litigation could escape the appropriate costs liability by not formally promising to provide support. In my view, this would defeat the purpose of the clause and is not a sensible position. It is the Government’s view that those who finance and drive judicial reviews should face appropriate costs consequences in doing so. I shall shortly answer the questions raised on that by the noble Baroness, Lady Lister, and others. This means that the court should have before it and consider all of the information when making costs awards, and this should include not just those who have provided funding but those who are likely to do so.

In my view, it should not be possible to bring litigation in such a way as to circumvent proper costs exposure. The changes introduced by Clauses 65 and 66 tackle precisely this issue, ensuring that those driving judicial reviews assume a fair and proportionate share of the financial risk, always, of course, subject to the discretion which must exist in these circumstances, given that it is impossible for a legislative provision to define exactly every single type of situation where the matter would have to be dealt with.

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There is no question of singling out those who support applicants. In answer to a question raised by the noble Lord, Lord Beecham, and, I think, others, I should say that the power that courts have to order non-parties to pay costs in litigation of whatever character exists and, in appropriate circumstances, would apply to non-parties whether they are in some way supporting one side or another. That power exists.

As to the reduction in legal aid, my noble and learned friend Lord Mackay accurately stated the position in relation to legal aid. Unlike in many areas of the law, legal aid does remain in scope for judicial review subject to means tests and merits tests. That is an important inclusion of scope. On the point made by the noble Lord, Lord Pannick, the Civil Legal Aid (Remuneration) (Amendment) (No. 3) Regulations 2014 are concerned simply with that part of the procedure where an unsuccessful application is made for permission and only in relation to that permission. That, I know, is controversial, but it should not be thought that legal aid is not available for judicial review.

The noble and learned Lord, Lord Woolf, whose excuse for lateness was, of course, of the highest order, mentioned the availability of conditional fees. These are of course much less available following Part 2 of the LASPO Act, which indeed was supported by the noble and learned Lord, Lord Woolf, among others, on the basis that an unfortunate consequence of the expansion of the original idea of conditional fees—which I think was in modest scope the responsibility of my noble and learned friend Lord Mackay—had resulted effectively in a bonanza which was in fact having a number of undesirable consequences. There is a much more modest scope now for conditional fees.

12.45 pm

The noble and learned Lord also mentioned the fact that damages were rarely a feature of judicial reviews, and he is entirely correct on that. However, it is the case, as was pointed out in debates on Monday, that judicial review can nevertheless result in an advantage to an applicant in the circumstances of delay, for example. Sometimes that delay is appropriate; sometimes it is a collateral benefit of bringing judicial review in the circumstances that were discussed in debate earlier this week.

The noble and learned Lord also referred to the question of standing and the fact that, in his view, for the circumstances he described, having a reasonably generous view of standing could result in justice being done. Indeed, I would suggest that, in the characterisation of the Government’s approach to judicial review, insufficient credit has been given to the Government for the fact that, although initially they were concerned about the role of standing, they none the less did not pursue their changes on standing. Standing, elastic as it is, remains part of the judicial review picture.

Given the availability of legal aid and the continued scope of standing, it is important that the House does not exaggerate the extent of the modifications that we are making to judicial review. Of course, my noble friend Lord Cormack referred to access to justice, and we all have that very much in mind. But access to justice, whether it is seen through the prism of Article 6,

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or through our principles which pre-existed our accession to the European convention, must be qualified by the availability of funds and by justice both to the taxpayer in these circumstances and to the individual who may seek to obtain judicial review.

I come now to the important points made by the noble Baroness, Lady Lister, and indeed by other noble Lords. We cannot of course prejudge the courts’ approach to Clauses 65 and 66, but we do not believe that the provisions would affect the common law position concerning when costs would be awarded against a party. As the courts have made clear, such awards against a non-party would be exceptional and require a strong degree of control and funding of, and potential to benefit from, a judicial review. We are therefore confident that a small contribution to a fighting fund without further ado would simply not be adequate to bring about an order for costs. These clauses should not cause anyone to pay costs who would not do so under the current law, except those who should but of whom the court is unaware. I hope that will allay, to some extent, the fears that some have about making challenges to a school or some other small project, which they might reasonably hope would be the subject of a judicial review.

There was also a point raised by my noble friend Lord Marks about the degree of information that might have to be provided by supporters. In fact, the clause requires the claimant to give information about their sources of financial support in an appropriate way. It would not require each supporter to provide full details of their individual financial circumstances.

Lord Marks of Henley-on-Thames: Presumably my noble friend would concede that the claimant who fills out the form is only going get the information from the supporters who are proposing to support him.

Lord Faulks: Quite so, but I thought that the inference was that some full disclosure of all financial circumstances was going to be required of third parties, and that is not what the rules suggest.

We suggest that these clauses are not making a radical change in the existing law. They are not, in fact, removing the capacity of those who should be able to bring claims for judicial review; they are simply placing on the statute book what some of the senior judiciary wanted, which was a degree of transparency to stop those rare cases where the taxpayer is having to pay for judicial reviews in circumstances where the true funders are managing to obscure the position in a way that no one in this Committee would like.

Lord Woolf: I am sorry once again to interrupt the Minister in his closing address, but does he agree that it is absolutely essential, if the purpose of these provisions is the limited one that he identified, that those who are preparing proceedings for an application for judicial review, who want to know what they have to do because of the provisions of Clause 65 on funding, need to be told that there will be no requirement in that sort of situation to provide particulars of the resources—to take the example we were given—of all the people in a small village who are making a

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contribution? Some of them may be wealthy and some may be poor, but someone who is wealthy may have a significant obligation.

Lord Faulks: The answer, I think, to the noble and learned Lord’s question is that Clause 65(1)(b) states that the information will be specified in the rules of court. The anxieties expressed in the Committee and by those who have provided briefings and written articles are clearly matters that will be taken into consideration, and we do not want to stifle proper judicial reviews or make people feel anxious about small contributions. These matters will be taken into account. However, for the reasons that have also been outlined in argument, we cannot specify in this statute every single, precise situation.

I hope that I have gone some way to reassure those who have sought—

Lord Goldsmith (Lab): I am grateful to the Minister for giving way. I was taken by a remark he made a few moments ago. I was listening attentively to everything that he and noble Lords have said. He seemed to suggest that these changes were here simply because the senior judiciary had asked for them. Is that what he was saying, because I am surprised if that is the position?

Lord Faulks: No, I do not think that the noble and learned Lord was here at the beginning of the debate, but I have not, in fact, suggested that the provisions were there only for that reason. I see the noble Lord, Lord Beecham, is nodding. I said that they are there because the Government think that they should be included. However, I did say that the senior judiciary welcomed a degree of transparency. I am not suggesting that that they also endorsed the precise form of the statute, if that helps the Committee or the noble and learned Lord.

Lord Davies of Stamford: The Minister said two things, if I heard him right. One was that the intent of these clauses is not in any way to change the common law basis of the criteria for determining liability for the costs of a judicial review, and that those who are currently not exposed to such liability will not be exposed as a result of the provisions in the Bill being passed. At the same time, he said that there are categories of people who have been getting away with avoiding financial liability for judicial review at the expense of the taxpayer, when they should have been liable. Can I put it to him that those two statements are not logically compatible? Either there is a change in the scope of liability for judicial review as a result of these clauses or there is not.

Lord Faulks: I cannot add much to what I have already said. For the first time, in statute—if this clause becomes law—we shall have a requirement for information about financial resources to be provided. We shall also have clear guidance to the court as to how it should exercise its discretion on using that information about financial resources. I think that the

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noble Lord himself said that it was useful to have some of these things stated in the statute. That is precisely what we are doing.

Lord Beecham: The Minister has battled with arguments from around the House with as much valour as Richard III displayed at the battle of Bosworth, and with approximately the same result. The Minister’s arguments fell very far short of providing evidence of the case that the Government are seeking to rely on. We heard from him and the noble and learned Lord, Lord Mackay, about two cases. I am not sure whether one of those was hypothetical or not—I think it was a planning matter of the kind that the noble and learned Lord referred to—and the other was the Richard III case. As to the illustration of Islington cited by the noble and learned Lord, I think that the circumstances would be different now. Speaking as someone whose daughter lives in Islington and whose son has just sold a tiny flat for an enormous amount of money in Islington, I think it would be difficult to find anybody who could be described as poor in large parts of that borough. However, leaving that aside, and more substantively, let us look at the Richard III case. There is a point, and it is a fair point, about shell companies being established for that purpose.

Lord Faulks: I am hesitant to interrupt the noble Lord, but since he is coming on to deal with Richard III, and I was asked a question about it, I now have a better answer than the one I gave earlier. He may be able to comment on my answer, so I shall give him an opportunity that he might not otherwise have had. The position is that in the Richard III case the claimant—a shell company—got an absolute protective costs order as the company had no assets, so no costs at all were payable when the claimant lost the case.

Lord Beecham: I repeat that I think there is a potential issue with shell companies. How many other cases of that kind have occurred? The only one we have heard about, and the only one to which the former Lord Chancellor has legitimately referred, is the Richard III case. How many of the other 336 cases that have been brought for judicial review in the past few years have involved what I agree is an abuse? If there is a problem, which the noble and learned Lord and the Minister are perfectly right to address, could it not be dealt with differently? If necessary, there could be legislation dealing precisely with that situation, rather than a general application of principle which could affect many others who are perfectly legitimately seeking to advance their claim? It is fair to say that the Minister has not given the impression of knowing—I do not blame him, because I am in no better a position—whether the court’s current discretion will extend, as implied by the noble and learned Lord, Lord Woolf, to dealing with that situation now. If it did not, we would be prepared to support and discuss what kind of amendment might be made to the Bill to deal with that particular and discrete situation, as I have no doubt other noble Lords, particularly noble and learned Lords, would be.

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Lord Mackay of Clashfern: The noble Lord asked whether the examples I gave were both real. One, which I have dealt with in detail before, is an actual example, and the other was simply to illustrate what could happen under the case put forward by the noble Lord, Lord Marks of Henley-on-Thames.

Lord Beecham: Of course the noble and learned Lord is right. I should simply have referred the Islington matter to him as a substantive one. As I said, that is unlikely to be replicated in that particular borough in any event, but that is by the way.

The Minister has signally failed to answer other questions, particularly what is meant by availability and the likelihood of availability. That question has been left in the air, which is not at all satisfactory. We have debated legal aid in this House before, as we have the problems that applicants and their legal advisers will face in dealing with matters up to the stage when permission is granted. There is a real risk that costs up to that point will not be covered by legal aid. There are other areas that will potentially be governed by other proposals, for example concerning a residence test, which currently is under appeal. We will come on to those later.

1 pm

There are significant issues here. The sense of the Committee is certainly one of great concern about the implications for access to justice. The phrase of the noble and learned Lord, Lord Woolf, that access to justice should be easier and not more difficult in the context of judicial review is exactly the right way to approach these matters. I am sorry to have to repeat this, but it appears to need repetition: let us not forget that one side in these cases is the Government or a public agency for which, no doubt, it is not particularly desirable to expend resources, but for which resources are not, essentially, a problem. Incidentally, where is the evidence—apart from the £82,000 that the noble Lord referred to in the Richard III case—of how much money the Government have spent on cases where they have succeeded in these areas? That is a matter that might be of some help to the House.

The crucial issue here is that the Government are laying down a framework in their own interests as a respondent on behalf of other public agencies. This is a matter that should be left entirely to the discretion of the courts, which have no vested interest at all. For that reason it is a matter clearly to which we will have to return on Report, unless the Government have sensible second thoughts. However, at this stage I beg leave to withdraw the amendment.

“(2) The High Court and the Court of Appeal may not order costs to be paid as between an intervener and a relevant party to the proceedings unless it considers that there are exceptional circumstances which make it appropriate to do so.

(3) In determining whether there are exceptional circumstances for the purposes of subsection (2), the court must have regard to criteria specified in rules of court.”

Lord Pannick: My Lords, Amendment 74—indeed, all the amendments in this group—concern the costs of interveners in judicial review proceedings. Clause 67 is another ill considered and unnecessary provision that will damage the efficacy of judicial review. Noble Lords will know that often in judicial review proceedings the court allows a person or body to intervene because it has knowledge, experience or an interest that will assist the court in deciding the case. Clause 67 states that interveners may not receive their costs other than in exceptional circumstances. More worryingly, it adds that, unless there are exceptional circumstances, the intervener must pay any costs that have been incurred by a party as a result of the intervention, no matter how helpful the intervention may have been.

I simply cannot understand why such provisions are necessary or why they are appropriate. The current legal position is clear and fair: the court has discretion on whether to allow an intervention and, if so, whether to order a party to the judicial review to pay the intervener’s costs—which very rarely happens in my experience—or whether to order the intervener to pay costs to a party. Clause 67, by contrast, is manifestly unfair. It will create a strong presumption that the intervener must pay costs, even if the intervention is helpful to the court in raising points and drawing attention to material that assists the court in reaching its judgment.

Why does this matter? It matters for the obvious reason that public interest bodies such as Liberty, the GMC, the UN High Commissioner for Refugees, or indeed the Secretary of State himself or herself—a number of interventions in judicial review cases are made by government departments—will be far less likely to intervene if there is a strong presumption, as the clause will ensure, that they will pay the costs of the intervention and of the other parties. If the clause is enacted, the inevitable consequence is that the court will be denied the assistance that it currently receives from public interest bodies, to the detriment of public law in this country. This makes no sense whatever. Incidentally, I note that the clause does not apply in the Supreme Court, but interventions are as frequent and helpful in the High Court and in the Court of Appeal.

Amendment 74 would introduce some sense into the clause by providing that costs should be paid to or by an intervener only in exceptional circumstances. The better solution would be to remove Clause 67 from the Bill. There is no current difficulty. Judges

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have ample powers to decide whether to allow interventions and what the cost consequences should be. Clause 67 would deter valuable interventions. I beg to move.

The Chairman of Committees (Lord Sewel): I have to inform the Committee that if Amendment 74 is agreed, I cannot call Amendments 74A to 74L inclusive by reason of pre-emption.

Baroness Kennedy of The Shaws (Lab): My Lords, I support the amendment. I notice that the Minister has invoked the senior judiciary in other aspects of the Bill. I remind the Committee that there is considerable judicial support for interventions—and not just in the Supreme Court. Judges have a very wide discretion in allowing such interventions. Only last October the noble and learned Baroness, Lady Hale—who is a Supreme Court judge, but she was speaking generally—spoke about how the more difficult a matter is on an important subject in the courts, the more help we need to try to get the right answer.

Interventions are enormously helpful. That is the view of the judges dealing with these kinds of cases. They have discretion as to whether to allow the intervention. Interventions come from organisations that do not have great resources. More often than not, the lawyers are in fact acting pro bono for NGOs and bodies such as Justice, of which I am chair of the council. The idea that this will now involve the real risk of incurring costs will have a very detrimental effect on something that is of enormous benefit in reaching a just resolution to many issues. I strongly support the amendment. I hope there will be second thoughts as to whether the change should be introduced.

Baroness Campbell of Surbiton (CB): My Lords, I wish to speak in support of all the amendments in this group and, in particular, Amendment 74, in the name of my noble friend Lord Pannick, and to oppose the Question that Clause 67 stand part of the Bill.

There is a very strong presumption that interveners will be liable for the other party’s costs arising from an intervention, as well as their own, unless there are exceptional circumstances. This, as I understand it, is regardless of the outcome of the case and of whether the intervention helped, so potentially they could be liable for the legal costs of the party who loses the case. As a lay person, I do not see the justice in that. At present, the court decides who pays the costs and, for me, this works perfectly well.

This provision appears to the lay person to be designed for one purpose only—to deter interventions from organisations with limited resources. Unlike government departments, they could not contemplate such a risk. That applies to many charities; I spoke about this at Second Reading. Many of them have very small budgets and are run by volunteers, who are only too aware—perhaps they are overcautious—of their responsibility to avoid any financial risks.

Judges have consistently acknowledged the value of interventions in helping them to come to the right decision. It is in the public interest that they hear

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relevant evidence on important issues. If fewer interventions are made, they will lose vital sources of expertise, especially in relation to those most in need of protecting. The intervention of the Equality and Human Rights Commission in the case of R (B) v DPP in 2009 is a really good example of this. In this case the Crown Prosecution Service stopped a prosecution because the victim had a mental illness. This led to valuable new guidance on dealing with vulnerable witnesses and defendants in the criminal justice system.

During my time at the Disability Rights Commission —I was on the legal committee at that time—the DRC’s intervention in Burke, a case concerning the GMC’s guidance on the withdrawal of food, hydration and treatment, was, unusually, singled out for praise by Mr Justice Munby. He referred to,

“a particular and highly relevant informed expertise which none of the other parties could bring to the task in hand”'.

I have to declare an interest here as I was closely involved as part of the intervention body. This landmark case has had a profoundly positive effect on the patient/doctor relationship in this country when it comes to planning end-of-life treatment.

Interventions have a long and distinguished history and we cannot allow that to be weakened for the sake of the one or two examples of the bad apple. Where would we be today without the Leslie Burke case?

Lord Carlile of Berriew (LD): My Lords, I rise with an appeal to my noble friend the Minister, whom I know to be a very good lawyer and a very sensible person, to accept the view being expressed around this Committee that this clause should not appear in the Bill.

I added my name to those intending to oppose the clause because I believe that, if there is one clause in the Bill that does grievous bodily harm to judicial review in this country, it is this one. Judicial review, as the noble Lord, Lord Pannick, said eloquently in his introduction—and as the noble Baroness, Lady Kennedy, illustrated, too—has over the years benefited from numerous interventions, sometimes from surprising sources. We are familiar with interventions by Liberty. When I was the independent reviewer of terrorism legislation, I disagreed strongly with some of those interventions, but I valued every single one because they enabled the issues of national security that were before the courts to be tested at all levels of judicial review and not merely in the House of Lords or the Supreme Court.

1.15 pm

The interveners in such cases are often repositories of excellence and expertise. Perhaps I may give the example of an organisation of which I used to be president, the Howard League for Penal Reform. In the Howard League there are, for example, experts in children’s justice who know more about that subject than probably most of the rest of the lawyers, even in this House, added together, and that expertise is given through interventions. They are not allowed to intervene because they feel like it. As the noble Lord, Lord Pannick, said, in order to intervene they have to have the permission of the court. That means that the

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senior judiciary have decided that they will benefit from the knowledge of those interveners in reaching a balanced and fair decision. Surely we want to retain that without the chilling effect of this clause, which would make the trustees of NGOs extremely reluctant to allow funds to be risked in such interventions.

Furthermore, interventions are often made by written representation. They may be drafted by brilliant lawyers such as the noble Lord, Lord Pannick, and their effect may even be to bring arguments that have been presented by other litigants to an end, at great value to the public purse and a saving of court time. The inclusion of the word “must” in Clause 67(4) is what in my judgment, for what it is worth, does grievous bodily harm to judicial review, as I said earlier.

I conclude by saying to the Minister that I do not believe that anybody who has been involved in any cases of this kind or has seen the judgments given in them believes that the current costs system is anything other than robust, fit for purpose and free from the necessity of this kind of change.

Lord Carswell (CB): My Lords, it is a known principle of the law that first-hand evidence is better than second-hand. As one who received and considered interventions in many appeals over the years, perhaps I may intervene briefly to assure the Committee how exactly correct the representations made by the noble Lord, Lord Carlile, and the noble Baroness, Lady Kennedy, were concerning the usefulness of interventions to the courts which hear them.

Of course, there are two stages, as has been made clear to the Committee. First, there is the stage at which the judges consider whether an intervention should be allowed at all. I assure your Lordships that that is a very carefully monitored procedure and that it is far from automatic that an intervener will be allowed to put in an intervention. Secondly, if the intervention is permitted, it is usually fairly briefly presented—and, if I may say so, if it is an intervention by the Members of this House who have mentioned this, very well presented. Some of the regular interveners—the names of three of them are before your Lordships—are of extremely helpful compass and have contributed a great deal to the decision in the proper form of appeals and to the advancement of the law in these cases.

I simply rise to say from the point of view of one who has received many of these interventions and has benefited from them that what has been said on the authority of other people is exactly right.

Baroness Lister of Burtersett: My Lords, I support the amendment and I also believe that the clause should not stand part of the Bill. I welcome the fact that the Government are in listening mode on this clause and that at its early stages the Minister has suggested that he is open to amending it, although I think that it would be better if it simply vanished. I put on the record that I welcome the Government’s climbdown on the question of standing. The Minister said that perhaps we had not given enough recognition to that, so I am doing so now. That was partly in response to points made by the Joint Committee on Human Rights—of which I am a member—which is very concerned about this clause. The committee said:

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“Third party interventions are of great value in litigation because they enable the courts to hear arguments which are of wider import than the concerns of the particular parties to the case”;

and, as has been pointed out:

“Such interventions already require judicial permission, which may be given on terms which restrict the scope of the intervention. We are concerned that, as the Bill stands, it will introduce a significant deterrent to interventions in judicial review cases, because of the risk of liability for other parties’ costs, regardless of the outcome of the case and the contribution to that outcome made by the intervention”.

It went on to say that,

“it is not clear to us at what mischief this clause is aimed”,

a point made with regard to the previous group of amendments. The committee goes on to say:

“The Government has not produced evidence of abusive interventions or cases in which an intervention has significantly and unjustifiably increased the costs of the case for other parties”.

In contrast, the briefings that we have received include numerous examples where interventions have assisted the courts, as recognised by the senior judiciary; this point has already been made by a number of noble Lords. A number of us here attended an oral briefing recently, and I was struck by the presentation made by a representative from Just For Kids Law. It is very clear that the new rules can prevent it playing this role, thereby depriving the courts of very important specialist information about children in criminal law.

The organisation Justice regrets that the Government have made no attempt to assess the public interest of interventions. They have given no indication of the practical implications. Perhaps noble Lords will permit me to read a series of questions that Justice has asked, because I believe that they deserve an answer. It says:

“While cases of obvious time wasting by third party interveners are easily addressed under the rules currently in place, how will the court be able to determine whether additional costs are in fact attributable to an intervention? If an intervener acts within the bounds of his permission to intervene, with written and oral submissions made only as directed by the court, will they avoid costs? On the language of ‘exceptional circumstances’ proposed in the Bill, it would appear not. If an intervener provides clear, concise reasoning which clarifies the issues and saves everybody time, will saved costs be deducted from those otherwise payable by the intervener? The allocation of costs referable to an intervention is unlikely to be straightforward”.

I have already quoted from the joint briefing, in which civil society groups warn that there is a real risk that the court will lose the ability to hear from that part of civil society that represents the poor, the weak and the excluded, and to bring specialist expertise to bear. This clause will further tilt access to justice in favour of those with power and resources, who will be able to bear the costs, and against those without power and resources, who will not be able to bear the costs. This is in the context of legal aid cuts, which are already tilting this balance beyond what can possibly be deemed to be just.

Lord Marks of Henley-on-Thames: My Lords, as the noble Lord, Lord Pannick, pointed out, Clause 67 proposes, first, that an intervener cannot get its costs except in exceptional circumstances; and, secondly, that an intervener must pay the costs of all the parties occasioned by its intervention except in exceptional

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circumstances. Both of these propositions—but particularly the second—are extraordinary. They are plainly designed to deter interventions by making them possible only if the intervener can fund all parties’ costs occasioned by the intervention.

If an intervener finds evidence, all the other parties’ evidence in reply will be at the cost of the intervener. If an intervener’s counsel speaks for half a day and the other parties’ counsel reply for a day and a half, they do so at the intervener’s cost. All that is on a win-or-lose basis, so even if the intervener is proved right and the government department or departments are proved wrong, and even if the judge has been greatly assisted by the interveners, the interveners will still pay all the parties’ costs occasioned by the intervention. This is against the background that, far more often than not, interveners do indeed help the court. After judgments, one frequently sees judges expressing their gratitude for the assistance of interveners, who, as has been said, often bring a broader experience to a particular judicial review application than an individual applicant can bring. The Committee was greatly assisted by the first- hand evidence of the noble and learned Lord, Lord Carswell, as to how helpful interventions often are.

The arguments in favour of this clause appear to be based on the proposition that interveners are often campaigning organisations with an agenda that is—in the widest sense of the word, at least—political or quasi-political. So they are, but such campaigning organisations have considerable expertise in their fields, as noble Lords have pointed out, and noble Lords benefit regularly from briefings from such organisations. If those interventions lack merit, the courts already have discretion to make orders for costs accordingly. However, these provisions would threaten not only the right to intervene but also the ability of the organisations which currently intervene habitually in judicial review cases to raise funds for their activities. That is a threat, I suggest, to the functioning of civil society. I will not name particular organisations because a number have already been named in this debate. I believe that to inhibit the activities of those organisations would be profoundly wrong. I do not believe that any body of credible evidence has been advanced in support of this clause to support the proposition that interventions have caused a problem that needs correcting. Still less do I believe that the courts’ existing powers to make costs orders are inadequate.

Our Amendments 74A, 74C and 74D preserve the courts’ general discretion to order a party to pay an intervener’s costs if the courts consider it just to do so. Amendments 74H and 74K preserve the general discretion of the courts to order an intervener to pay another party’s costs. I can see no possible basis, in either justice or common sense, to interfere with the existing court process and to deter interventions in the way that Clause 67, as drafted, is bound to do.

Lord Woolf: My Lords, I was hesitant to add to this debate by yet another intervention, but perhaps I may draw attention particularly to subsection (6), which says:

“In determining whether there are exceptional circumstances that are relevant for the purposes of subsection (3) or (5), the court must have regard to criteria specified in rules of court”.

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I would like the Minister’s help as to what matters can properly be said to be criteria, as opposed to matters that are not. “Exceptional circumstances” would not normally, for example, provide any protection—this is the important point—to the position of the charitable organisations which, at the present time, intervene.

1.30 pm

Anyone who attended the hearing held just prior to the debate starting, at which a number of charitable organisations expressed their concern about this—of which the noble Baronesses, Lady Lister and Lady Kennedy, are well aware—would have seen the fear in those organisations about the consequences of this clause. Can the Minister say whether it is anticipated that the provision in subsection (5) would provide any comfort to them?

The Minister is of course well aware, although lay people may not be, that the position with regard to judicial review again differs here from that for ordinary proceedings. In the latter, the only persons who are bound by the decision are the claimant and the defendant to the proceedings; with judicial review, you are in public law proceedings, which are of general application. When matters arise during the proceedings that the parties may not in any way be interested in, the only way that the court can be properly apprised of those matters is through an intervener.

I can go further and say that there have been cases before the courts on judicial review applications where both parties had reasons not to draw the court’s attention to how third parties might be affected by their argument. That is why, in certain proceedings—as my noble friend Lord Pannick pointed out in his very appropriate submissions—the Crown has to intervene to ensure that the matter is explored by the court. If the court was unaware of the dimension that I have just referred to, it might make a decision in the course of its judgment that would be quite contrary to the decision it would have come to had there been an intervention. I hope the Minister can try to assist noble Lords on that matter.

Lord Goldsmith: I utterly support everything that has been said in opposition to this clause but I want to deal with it from a slightly different perspective—from a government perspective. When I was in office I was responsible for many of the judicial reviews that were taken against the Government, either dealing with them myself or supervising and watching other advocates deal with them. I also from time to time made interventions, a subject to which the noble and learned Lord, Lord Woolf, referred. I hope that the Minister will take on board the important point that the noble and learned Lord has just made and take it back to his colleagues. This is public law and an area where the decision will affect many others. I often found, in cases where there was an intervention, that it was because of the intervener that the real issue emerged. That was often because it was the noble Lord, Lord Pannick, who was making the intervention—my heart often sank when he came up because I knew we were in for a tough fight. However, I knew that the real issue would be there and that, as the noble and learned Lord, Lord

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Woolf, said, the implications for third parties would be properly brought forward and understood. That is critically important when a court is making a decision.

The noble Baroness, Lady Lister, said that the Government are in listening mode, and I hope that they will listen on this. As a young barrister, I recall being told by a senior official from the Treasury Solicitor’s office when I said, “I hope we win this case”, that the Crown “neither wins nor loses cases; we simply clarify the law”. As an ambitious young barrister, that was not my approach to things, but it is not actually a bad approach. The Government should care that the law is clarified and that it is clarified in the best possible way. That will often require interveners, who will make sure that the right issues and the proper arguments are brought forward and that the full implications are understood. I cannot see any reason for this clause being there other than to chill such interventions. That would be a very bad thing for the course of justice and I hope that the Government will think again.

Lord Judge (CB): My Lords, I endorse, from the point of view of England and Wales, what my noble and learned friend Lord Carswell said about his experience at first instance and in the Court of Appeal in Northern Ireland. On one view of the clause, the Supreme Court is being discriminated in favour of. The Supreme Court consists of five, seven or nine of the brightest legal minds in the country—in the whole country. One judge sitting alone at first instance, or three judges sitting in the Court of Appeal, do not have that same intellectual power. It is immensely helpful to the judge or to the Court of Appeal to have an intervention, leave for it having been granted by somebody who knows something about issues which might have been overlooked.

Lord Mackay of Clashfern: My Lords, so far all noble Lords have spoken in the one sense in relation to this clause. Obviously, in the interests of balance, it is important to consider whether there is anything to be said in favour of the clause. So far as I am concerned, there has been a considerable growth in the number of interventions over recent years. I would like the Government to indicate to us—at some later point if they do not have the information now—exactly how many interventions there have been in the supreme courts. I use that term in its old form, because I think it is extraordinary that we now have senior courts and the Supreme Court. It is high time that the Supreme Court was regarded as the supreme court of the United Kingdom, while the High Court of Justice, the Crown Court and the Court of Appeal were the supreme courts of England and Wales. I hope that, after September, all being well, that may be corrected.

I am not aware that judgments have considerably improved in quality in recent years as a result of interventions, although there may be some way of estimating that. It is always a little difficult, but somebody may be able to do that for us and show the tremendous amount that the interventions have done. I know that the noble and learned Baroness, Lady Hale, for whom I have the highest possible regard for a number of reasons, has said that they are often helpful. I am sure

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that that is true. Everybody wants help; at least most people with any degree of humility are glad to get help, from whatever quarter it comes.

The noble Lord, Lord Marks, referred to an aspect of this which I think has to be taken into account. Some of the interveners are campaigning organisations, which are campaigning for a particular result. You may take it that they had a good shot at trying to persuade Parliament to go along with them and that, having failed at that, the campaign is continued once the law is passed. These are not conclusive arguments one way or the other, but I personally find this clause too prescriptive in any event. If there is a real point to be considered, the clause needs some revamping, possibly in the light of the amendments that have been proposed. At the moment, I am anxious to see just why there has been a huge increase—as I think there has been—in the number of interventions in recent years. The first intervention that really came to my notice to any substantial extent was an intervention in this House in a case that became rather important for a number of reasons.

Lord Beecham: I am sure that when it comes to interventions, the Minister is extremely grateful to the noble and learned Lord, Lord Mackay, because I suspect that no other intervention has offered him any assistance. The noble and learned Lord might recall that there have been, I think, 50 cases in the last 13 years in which bodies of the kind that he referred to, such as charitable organisations, have intervened. That is not, on the face of it, an inordinate number, just as the total number of judicial review cases—other than immigration cases which are no longer dealt with in the courts—is fairly modest.

Moreover, interventions take place only with the leave of the court. If there were a right to intervene that would perhaps give some force to the noble and learned Lord’s misgivings, but it is for the court to determine whether interveners should be allowed. That point has been made clearly today and on other occasions. It seems to me that the Bill’s provisions in relation to interveners are based on either a misunderstanding of their role or a misrepresentation—deliberate or otherwise—of how it works in the real world, rather than the world the Minister of Justice appears to imagine exists. As we have heard, the role of interveners is to assist the deliberations of the court, not to meddle. Of course, no intervention can be made without the court’s consent.

We have heard powerful speeches from the noble Baroness, Lady Campbell, and the noble Lord, Lord Carlile, who have direct experience of the role of intervention on—almost—different sides. Clause 67 seems to me to be a full-frontal assault on the principle of intervention. As has been stressed today, in earlier debates and in many of the briefings that we have received, this clause is clearly designed to deter contributions to the determination of judicial review applications. Again, leave for contributions must be obtained from the court and, as we have heard exemplified today, such contributions are very often most helpful to the court.

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I shall speak to Amendments 74A, 74B, 74E to 74G, 74J and 74L. These amendments broadly follow the theme of preserving the court’s discretion in these matters where the Bill would fetter it, usually for the benefit of the respondent and often, therefore, of the Government. Clause 67(2) illustrates perfectly the Government’s attitude to the principle of equality of arms. It prohibits any order for costs in favour of an intervener. This provision is clearly aimed at charities and voluntary organisations, as opposed to commercial or statutory organisations which are well able to afford the costs of intervention, and it is heedless of the likelihood of thereby discouraging helpful interventions. Amendment 74A would therefore allow the court to make an order for a relevant party to pay the intervener’s costs. Amendment 74B would emphasise the discretionary nature of such an order by adding,

“if the court considers it appropriate to do so”.

Amendments 74E and 74F would remove Clause 67(4), (5) and (6), which require the court to make a costs order against an intervener in respect of costs deemed to have been incurred by a party as a result of the intervention, save in exceptional circumstances, the latter to be judged in the light of criteria, once again to be specified in rules of court, and again, therefore, effectively determined by the Lord Chancellor.

Amendment 74F would allow the court to make an order against an intervener where it considers it just to do so, and provided that exceptional circumstances apply. This would be defined by a new Clause 67(6) as where the intervener has in substance acted as if he were the principal applicant, appellant or respondent. If an intervener takes on that kind of role then he could be ordered to pay costs if the court so determines, as he could if he were a party. As an alternative, Amendment 74G, which is very much by way of a fall-back provision, would at least change the requirement in Clause 67(4) to make an order against an intervener from being mandatory to discretionary, which Amendment 74J would complement by adding,

“if the court considers it appropriate to do so”.

Noble Lords, in particular the noble and learned Lord, Lord Woolf, and the noble Lord, Lord Pannick, who are highly experienced in these matters, have expressed profound concerns about the nature of the Bill’s proposals. We have had indications from the Minister in the past that the Government are perhaps open to argument and persuasion about this. I very much hope that we can hear from him confirmation of that. I hope that some move will be made in the direction of allowing this process—which is of great service to the administration of justice—to continue without the threat which would impede and deter potential helpful interventions from those in the best position to advise the court, which after all retains the ultimate decision.

1.45 pm

Lord Faulks: My Lords, I am afraid that I am unable to resist thanking all noble Lords for their interventions on this debate. They have been extremely helpful, and I mean that. This is particularly in the light of the fact that I indicated at Second Reading—as

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has been referred to in the course of the debate—that we were listening to arguments about this clause. My honourable friend Shailesh Vara MP also gave such an indication in the other place. We will have benefitted greatly from the debate today in deciding on our final position.

Although the noble Lord, Lord Beecham, said that I was grateful for the intervention from the noble and learned Lord, Lord Mackay, it is of course the House which is grateful for all contributions on all sides. With great respect, the point about an intervention is not that it assists any one side, but that it assists the court. An intervention is there to assist the court. I noted and agreed with the noble Baroness, Lady Kennedy, who said that interventions are extremely helpful. They certainly can be extremely helpful, but not all interventions are equally helpful.

Clause 67 as currently constituted aims to strengthen the cost rules relating to third parties who voluntarily apply to join in a judicial review case as interveners. I stress “voluntarily” apply. These interveners can include anyone who is interested in the issues which the court is considering, and they seek permission from the court to intervene in a judicial review case through filing evidence or making representations. Of course, I accept the fact that interveners can add value and assist, as many noble and learned Lords have said. However, they can also delay and hinder. Sometimes they make arguments beyond those required by the court, or merely amplify or repeat those already made by a party.

Here I must declare an interest. I have been in a considerable number of cases where there have been interveners, at the level of both the Appeal Court and the Supreme Court, and on one occasion I acted for an intervener. In fact, I think that that was in the very same case in which the noble Lord, Lord Pannick, was also acting for an intervener. I am glad to say that we kept our remarks within the short compass, and our skeleton arguments were similarly brief. I do have experience of the mounting level of interventions in litigation.

The noble Lord, Lord Marks, referred to the possible chilling effect on those who habitually intervene; those were his words. With great respect, in his use of the word “habitually” there is perhaps an indication of something about which the Government are concerned. There are of course cases where the court is greatly assisted by interventions brought by a disinterested party, which can bring a particular knowledge or contribution to the debate. However, the court might be less assisted by those who habitually intervene and who have a particular agenda which may require or indicate that they support one side or another.

Lord Beecham: My Lords, who is to decide whether a habitual intervener should be allowed to intervene? What is wrong with the court making that decision of its own volition?

Lord Faulks: I was coming to that very point. Interventions can prove difficult for the courts to control. The reason I say that is because on occasions an application is made for an intervener to intervene

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and, on the face of it, the judge deciding whether or not they can intervene will do so on the basis that they have a knowledge of the case. The judge, having regard to the submissions that he or she receives, considers that the intervener might well be of assistance. The level and degree of intervention is then very often beyond the control of the judge who originally gave permission, so that one can then encounter—perhaps at the hearing of a judicial review, or at the Court of Appeal stage—a very substantial skeleton argument, bundles of authorities, and arguments which range very loosely around the subject matter of the dispute. Here I speak from experience.

Inevitably, this causes expense to all parties involved, whether the applicant or the respondent, because they have to consider the arguments. They cannot rest assured that the judge is simply going to ignore everything on the basis that it might be outside the scope of the intervention. Of course, good judges customarily curtail submissions made orally once the matter gets to the stage of a hearing, and do so effectively. That does not remove the danger of quite excessive levels of intervention and contribution.

Lord Pannick: The Minister will accept, I hope, that courts regularly impose terms on interveners. The court says, “You may intervene, but only on the following issues”, “You may intervene in writing, but only 20 pages” or “You may intervene orally, but no more than 30 minutes of oral submissions”. These are very familiar orders. What further powers do the courts need?

Lord Faulks: Those are familiar orders. They are not always adhered to or always made, but I entirely accept that they are familiar orders. The point that I am making is that they are difficult to police in a preparation for a trial although easier to police by conscientious judges when dealing with it.

The changes that Clause 67 introduces reflect the Government’s intention of ensuring that interveners have a more proportionate interest in the financial implications of a judicial review. There should be fewer cases in which the taxpayer—or any other party to a judicial review—is expected to shoulder the burden of others’ decisions to argue their case.

Therefore, as currently drafted, Clause 67 establishes two presumptions: first, that the court will order a voluntary intervener in judicial review proceedings to pay their own costs; and secondly, that it will order a voluntary intervener to pay the reasonable costs they cause a party to the judicial review to incur by their intervention. Neither would apply where, in the view of the court, there are exceptional circumstances making it appropriate for the presumption to be rebutted.

The noble and learned Lord, Lord Woolf, asked me about Clause 67(6) in relation to that, on the exceptional circumstances that are relevant for the purposes of subsection (3) and the criteria that will be specified in the rules of court. My answer to that is the same answer as I gave in the debate on Monday when responding to an amendment put forward by the noble Lord, Lord Beecham, about the rules of court. The Delegated Powers Committee suggested that these and other matters should be put in the Bill. We are

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considering carefully that report and will respond to it. Clearly, what has been said about it is an important factor which we will take into account.

I should, however, be absolutely clear that the clause will apply only to those who voluntarily seek permission, not in those cases where the court invites, as it sometimes does, an intervention because it requires contextual information from an expert group.

Amendment 74 would remove both presumptions and replace them with one new presumption whereby the courts may not order any costs to be paid between an intervener and a party to the proceedings unless there are exceptional circumstances. There, I come back to the rules of court.

In relation to the first presumption, this would have little effect, as the clause as drafted already sets out that a party cannot be asked to pay the intervener’s costs unless exceptional circumstances exist. The first presumption, as was confirmed by many of the responses received to our recent consultation on judicial review, broadly represents the status quo. In practice, interveners are usually responsible, as was pointed out in argument, for their own costs incurred in the judicial review. It will remain a matter for the discretion of the court to decide liability for costs in an individual case, but the Government’s view is that the principle should be set out in primary legislation in order to be transparent and to provide clarity both to interveners and to the parties.

It is, I apprehend, the second presumption which has caused the most disquiet, as is evident from this debate, both in the other place and more widely. I mention the other place because an amendment was tabled there in that respect on behalf of the Liberal Democrats, I think by my noble friend Lord Marks’s honourable friend Julian Huppert, although it has to be said that the Liberal Democrat position on Part 4 has ranged rather more widely than it did in the House of Commons, notwithstanding the apparent agreement in the coalition as to the inclusion of Part 4 in this Bill.

I want to set out some of the safeguards that Clause 67 already contains, in addition to the clause applying only to those who are not invited by the court to intervene. It will operate only on an application by a party. In suitable matters of high policy there may be an agreement between the parties and a potential intervener that costs will not be applied for. Even if the parties make an application, the court can decide not to make an award against the interveners.

The only costs in question will be those that the court considers are incurred as a result of the intervention and those costs must be reasonable. Neither defendants nor claimants will be able to ask interveners to pay for their decision to obtain unreasonably expensive legal advice to respond to the arguments the intervener raises. An intervener will never be asked to pay even one penny of the costs that one party has caused the other. This clause is about the financial impact on the parties which the intervention has.

For example, if the intervener raises additional points that are not germane to the case, then a party—which could be either the claimant or the defendant—may ask the court to require the intervener to pay their reasonable costs in addressing those points. This might

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cover counsel’s time, for example. The court will make the award if it considers that those costs were incurred as a result of the intervention and there are not exceptional circumstances that would make an order inappropriate.